Holder presses Texas to clear voting law changes

Opening salvo in wake of ruling on Voting Rights Act

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Attorney General Eric Holder said the Department of Justice would ask a court to require Texas to get permission from the federal government before making voting changes in that state.

By Charlie Savage and Adam Liptak
New York Times
July 26, 2013

WASHINGTON — Attorney General Eric H. Holder Jr. revealed Thursday the Justice Department would ask a court to require Texas to get permission from the federal government before making voting changes in that state. The move opens a new chapter in the political struggle over election rules after the Supreme Court struck down a portion of the Voting Rights Act last month.

In a speech before the National Urban League in Philadelphia, Holder also indicated that the filing was most likely an opening salvo in a new Obama administration strategy to try to reimpose “preclearance” requirements in parts of the country that have a history of discriminating against minority voters.

His statements come as states across the South, from Texas to North Carolina, have been rushing to enforce or enact new restrictions on voting eligibility after the court’s ruling in Shelby County v. Holder.

“This is the department’s first action to protect voting rights following the Shelby County decision, but it will not be our last,” Holder said. “Even as Congress considers updates to the Voting Rights Act in light of the court’s ruling, we plan, in the meantime, to fully utilize the law’s remaining sections to subject states to preclearance as necessary.”

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The move relies on a part of the Voting Rights Act the Supreme Court left untouched in the Shelby County case. The court struck down the coverage formula in Section 4 of the law, which had subjected Texas and eight other mostly Southern states to federal oversight based on 40-year-old data. The court suggested that Congress remained free to enact a new coverage formula based on contemporary data, but most analysts say that is unlikely.

Striking down the law’s coverage formula effectively guts Section 5 of the law, which requires permission from federal authorities before covered jurisdictions may change voting procedures.

The move by the Justice Department on Thursday relies on a different part of the law, Section 3, which allows the federal government to get to largely the same place by a different route, called “bail-in.” If the department can show that given jurisdictions have committed constitutional violations, federal courts may impose federal oversight on those places in piecemeal fashion.

State officials have celebrated the Shelby County ruling as lifting an obsolete relic of the civil rights era that unfairly treated their states differently from other parts of the country, while civil rights advocates have lamented it as removing a safeguard that is still necessary.

Lawyers for minority groups have already asked a court in Texas to return the state to federal oversight. The Justice Department’s action — filing a “statement of interest” in that case — will bring the weight of the federal government behind those efforts.

In a statement, Governor Rick Perry cast Holder’s remarks as an attempt by the Obama administration to weaken what he called the state’s voter integrity laws and said the comments demonstrated the administration’s “utter contempt for our country’s system of checks and balances.”

State Representative Trey Martinez Fischer, a San Antonio Democrat who is the chairman of the Mexican-American Legislative Caucus, said racial discrimination in Texas was not a thing of the past.

“The fact that intervention in Texas is the Department of Justice’s first action to protect voting rights following the Shelby County decision speaks volumes about the seriousness of Texas’ actions,” Fischer said.

Richard H. Pildes, a New York University professor who specializes in election law issues, said the move was “a dramatically significant moment in the next phase of the Voting Rights Act’s development” after the Supreme Court’s ruling.

“If this strategy works, it will become a way of partially updating the Voting Rights Act through the courts,” he said. “The Justice Department is trying to get the courts to step into the role the Justice Department played before the Shelby County decision. The Voting Rights Act has always permitted this, in some circumstances, but this strategy wasn’t used much. If this approach works, it will help update the Voting Rights Act even without congressional action.” In his speech, Holder said that evidence submitted to a court last year that the Texas Legislature had intentionally discriminated against Hispanics when redrawing district lines was sufficient to reimpose on that state the “preclearance” safeguard. He noted that the court — in blocking the map — had said the parties “provided more evidence of discriminatory intent than we have space, or need, to address here.”

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